A Cautionary Tale About Employees & Twitter

In April 2015 Mr Scott McIntyre, a SBS reporter and presenter, made headlines for posting a series of tweets about ANZAC day that were considered by many to be highly inappropriate and disrespectful. 

It is important to note that Mr McIntyre’s twitter profile stated that he was an SBS presenter permitting the assumption that his tweets were approved/endorsed/encouraged by his employer (SBS) and not just his personal opinion.

As a result of those tweets, Mr McIntyre was sacked by SBS because he had breached SBS’s Code of Conduct and Social Media Policy. 

Mr McIntyre has subsequently lodged an application under the general protections provisions of the Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging that the reason for his dismissal was because he expressed his political opinion.  Under the general protections provisions, it is unlawful for an employer to terminate the employment of an employee for that reason. 

Mr McIntyre also claims that SBS took the disciplinary action without proper investigation and consideration of all issues.

To determine whether or not the reason for the termination of Mr McIntyre’s employment was his “political opinion”, the Court will l need to consider, amongst other things, whether or not the “tweets” were actually an expression of a “political opinion”. 

The definition of political opinion is not straight forward and has been known to include expressing a preference for a particular party, believing in the right to strike, advocating changes to laws and expressing opposition for public policies.

Most recently, the Federal Court of Australia in Sayed v Construction Forestry, Mining and Energy Union [2015] FCA 27 considered a claim against the CFMEU by an employee who was an active member of the Socialist Alliance.  When CFMEU discovered Mr Sayed’s association, the employee’s employment was terminated.  The Federal Court considered that the meaning of “political opinion” included Mr Sayed’s identification with the opinions and beliefs of the Socialist Alliance and his membership and affiliation with that political party.  The Federal Court found that the reason for his dismissal was because of the affiliation with the Socialist Alliance and was a contravention of the general protections provisions in section 351 Fair Work Act 2009 (Cth).

This is not the first time the issue of “tweeting” a public opinion has been brought before the Courts or Commission, in Banerj v Bowles [2013] FCCA 1052, Ms Banerj who worked for the Department of Immigration, frequently used twitter to criticise practices and policies of the company that provided security services at Commonwealth detention centres, the immigration policies of the Australian Government, comments by the Opposition spokesman on immigration, the Minister for Foreign Affairs, Leader of the Opposition and other employees of the Department. 

In October 2012 following an investigation by the employer, the employee admitted she had been writing under the twitter handle “La Legale” and had a second job as a psychoanalyst. According to the investigator, both the Twitter account and the second job were contraventions of the Department’s workplace policies which justified Ms Banerj’s dismissal.

Before the Department could determine whether or not to act on that recommendation, the employee commenced proceedings in the Federal Circuit Court of Australia seeking an urgent interlocutory injunction restraining the Department from dismissing her.  Ms Banerj’s claim for interlocutory relief was not granted on the basis that the Department had not made any final determination about her future employment.  The Court also noted that there is no unfettered right or freedom of political expression/communication in the Australian Constitution and Ms Banerj was required to behave in accordance with the Department’s and Australian Public Service Values.

What then is the message here?  Certainly, employees must be cautious when expressing their personal political opinions in forums where such expressions could be held to a breach of their employer’s workplace policies and/or Code of Conduct.

Similarly, employers’ best chance of avoiding the whole controversy is to ensure that employees are aware of the employer’s requirements in relation to expressing opinions.  These obligations can be included in a Code of Conduct, a Social Media / Communication policy or even in an employment contract.  

Somewhat ironically, it is clear communication from the employer that will guide employees conduct in this situation.

As to Mr McIntyre, we await with interest to see whether or not his ANZAC Day tweets are found to be a “political opinion”.

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